Rivera Garay v. SHHS

Opinion

USCA1 Opinion

                                [NOT FOR PUBLICATION]
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

____________________

No. 94-1515

                                ANTONIO RIVERA GARAY,

                                Plaintiff, Appellant,

                                          v.

                       SECRETARY OF HEALTH AND HUMAN SERVICES,

                                 Defendant, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Hector M. Laffitte, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                        Cyr, Boudin and Stahl, Circuit Judges.
                                               ______________

                                 ____________________

            Juan  R.  Requena  Davila,  Raymond Rivera  Esteves  and  Juan  A.
            _________________________   _______________________       ________
        Hernandez Rivera on brief for appellant.
        ________________
            Guillermo Gil,  United  States  Attorney,  Maria  Hortensia  Rios,
            _____________                              ______________________
        Assistant United States  Attorney, and Robert  M. Peckrill,  Assistant
                                               ___________________
        Regional  Counsel, Department of Health & Human Services, on brief for
        appellee.

____________________

                                 ____________________



Per Curiam.  Claimant Antonio Rivera Garay filed an
                      __________

            application  for  social  security  disability   benefits  on

            January  9, 1990, alleging disability  due to a  back and leg

            condition, associated pain, and an anxiety disorder.  After a

            hearing,  the Administrative  Law Judge  (ALJ)  conceded that

            claimant  had   a  severe  impairment  or   impairments,  but

            concluded that claimant  was not  disabled at step  4 of  the

            sequential evaluation process,  20 C.F.R.    404.1520(e),  on

            the ground  that claimant's impairments did  not preclude his

            return to his former job as a lottery ticket vendor.  The ALJ

            based  this determination  on the  testimony of  a vocational

            expert  at the  hearing  that an  individual with  claimant's

            impairments, as described by the ALJ, could perform that job.

After the Appeals Council denied claimant's request

            for review of  the ALJ's decision,  claimant appealed to  the

            district  court, which affirmed.   On  appeal to  this court,

            claimant  argues  that   the  Secretary's  decision   is  not

            supported by substantial evidence.  We agree, and we direct a

            remand  to  the  Secretary   for  the  taking  of  additional

            vocational evidence.

Background
                                  __________

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We   review  the   Secretary's  decision   under  a

            "substantial evidence" standard; we will affirm that decision

            if it is supported by "such relevant evidence as a reasonable

            mind  might  accept as  adequate  to  support a  conclusion."

            Richardson v. Perales, 402  U.S. 389, 401 (1971).   The ALJ's
            __________    _______

            determination that  claimant could perform his  past work was

            based  on the  vocational  expert's  answers to  hypothetical

            questions  posed by the ALJ.  We must, therefore, examine the

            soundness of  those questions' premises.  If the premises are

            supported  by substantial  evidence in  the record,  then the

            vocational expert's responses constitute substantial evidence

            to support the ALJ's vocational determination that claimant's

            impairment  do not preclude his former work.  If the premises

            lack record  support, then the vocational  expert's responses

            are  not substantial evidence.  "[I]n  order for a vocational

            expert's answer  to a  hypothetical question to  be relevant,

            the  inputs   into  that  hypothetical   must  correspond  to

            conclusions  that  are  supported  by the  outputs  from  the

            medical  authorities."   Arocho  v. Secretary  of Health  and
                                     ______     _________________________

            Human Services, 670 F.2d 374, 375 (1st Cir. 1982).
            ______________

                      The ALJ described claimant's  exertional impairment

            to the vocational expert as follows:  

                    [C]onsidering  the claimant's  age, education
                    and working experience;  considering that  he
                    can alternate positions, can perform fine and
                    gross manipulation,  he can push and  pull up
                    to  25  pounds,  frequently.    That  he  can
                    occasionally lift more than 25  pounds.  That

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he  would  be  limited  in the  use  of  foot
                    controls, but that he  could bend, squat,  he
                    could  pull  and  push  the  weight mentioned
                    before.  If this  is the situation, are there
                    jobs in  a significant number  that a  person
                    like the  one we have described  before could
                    do?  

            The vocational expert responded that claimant could return to

            his former job as a lottery ticket vendor.

                      The  ALJ  then  added a  hypothetical  directed  to

            claimant's  mental impairment,  asking,  "And if  we added  a

            mental  condition  where  the  memory  seems  preserved,  the

            recent, remote and immediate memory is present, there is good

            attention,  concentration,  mental  capacity, good  judgment,

            good introversion.   Would your  opinion vary at  all?"   The

            vocational expert responded that it would not.  

                      Finally, the ALJ asked, "And if we gave credibility

            to the claimant's complaints as indicated here today, that he

            feels pain in the leg, that the left leg gets  numb, that the

            knee  fails him, that he has to use a cane, that he has chest

            pains, that he  likes to be alone, that he  hears voices.  If

            we  gave   credibility  to   these  complaints,  would   your

            appreciation change at all?"  The vocational expert responded

            that  claimant  could  not  perform  his  past  job  in  that

            condition.

Claimant's Exertional Impairment
                         ________________________________

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Substantial record evidence  exists to support  the

            ALJ's  description of claimant's  exertional impairment.  Two

            non-examining  physicians,  Dr.  Fragoso and  Dr.  Hernandez,

            reviewed   the  record   and  assessed   claimant's  residual

            functional capacity.  Both found that claimant could lift and

            carry up to 50 pounds, 25 pounds frequently; could sit, walk,

            and stand up to six hours each day; could push  and pull; had

            no manipulative limitations; and could climb, balance, stoop,

            kneel, crouch and crawl at least occasionally.  These medical

            findings, which  constituted the only  medical assessments of

            claimant's  residual  exertional  capacity  in   the  record,

            adequately supported the ALJ's hypothetical.  

                      It is true that the weight to be given the residual

            functional capacity assessments  of non-examining  physicians

            "will vary  with the  circumstances, including the  nature of

            the  illness  and  the  information  provided   the  expert."

            Rodriguez v. Secretary of Health and Human Services, 647 F.2d
            _________    ______________________________________

            218, 223  (1st Cir. 1981).   Claimant's benefits application,

            however, was denied at step 4, and at step 4 it is ordinarily

            claimant's burden,  not the Secretary's, to  produce evidence

            to  demonstrate that  he cannot  return to  his former  work.

            Gray v.  Heckler, 760 F.2d 369,  375 (1st Cir. 1985).   Since
            ____     _______

            claimant   was   represented   by   counsel,   there  is   no

            justification  here for  a  departure from  that  rule.   See
                                                                      ___

            Currier v.  Secretary of  Health, Education and  Welfare, 612
            _______     ____________________________________________

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F.2d 594,  598 (1st Cir.  1980).  The  onus was  on claimant,

            therefore,  to  introduce   additional  residual   functional

            capacity assessments  relevant to the  step 4  determination.

            Claimant having  failed to do so, the  Secretary was entitled

            to rely on the assessments of these non-examining physicians.

Claimant's Allegations of Pain
                          ______________________________

We  also find  no error  in the ALJ's  treatment of

            claimant's  subjective complaints  of  pain.   The exertional

            aspects of claimant's  pain, associated with  claimant's back

            and leg condition, are covered by our above remarks.   It was

            partly because  of claimant's "pain or  discomfort related to

            back syndrome" that the ALJ concluded that claimant faced the

            exertional limitations the  ALJ outlined in her  hypothetical

            to the vocational expert.

                      As for  the  non-exertional aspects  of  claimant's

            pain, we find that the ALJ conducted the kind of inquiry into

            claimant's allegations of pain required by Avery v. Secretary
                                                       _____    _________

            of  Health and Human Services,  797 F.2d 19  (1st Cir. 1986),
            _____________________________

            and  that  the ALJ's  decision  to  discredit allegations  of

            disabling pain  was supported  by substantial evidence.   The

            record supports,  and claimant has not  challenged, the ALJ's

            findings  that claimant  "has been  taking medication  on his

            own, has  not been  going for  treatment consistently and  he

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should complain  to the  treating sources so  that corrective

            action  may  be undertaken  such  as  prescribe a  substitute

            medication,  decreasing the  frequency or  the dosage  of the

            medication  or  orienting the  claimant  in  terms of  taking

            medication consistently."  The ALJ also permissibly relied on

            her  own observations  at  the hearing  that claimant  "had a

            cane, but he did not appear to actually need it for  support.

            He  admitted that such cane was not prescribed by any medical

            source and that he bought it on his own.  He was able to sit,

            stand  up  and  exercise  body control  with  no  significant

            limitations."  This  evidence adequately supported  the ALJ's

            finding, as reflected in  her hypotheticals to the vocational

            expert, that  claimant did  not suffer from  significant pain

            beyond that which contributed to his exertional limitations. 

Claimant's Mental Impairment
                          ____________________________

The  deficiency  in  the Secretary's  determination

            concerns   the   ALJ's  description   of   claimant's  mental

            impairment  in  the  ALJ's  hypothetical  to  the  vocational

            expert.  The  hypothetical merely stated that  claimant had a

            mental  condition,  without any  description of  any specific

            mental  impairment or  any specific  functional consequences.

            The hypothetical  then went on to  list a number  of areas in

            which claimant's mental capabilities were found to be normal.

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As  claimant  argues in  his brief  on appeal,  "the subject

            hypothetical  having to do  with appellant's mental condition

            poses no mental impairment at all."

                      The  medical  evidence does  not  permit claimant's

            mental  condition to  be ignored  in this  manner.   Even the

            psychological  evaluation most  favorable  to the  Secretary,

            that of Dr. Orlando Maldonado Rodriguez conducted on March 7,

            1990,  found a "mild anxiety  disorder."  It  did not discuss

            what, if  any,  functional limitations  that disorder  posed.

            The two assessments by non-examining agency review physicians

            of claimant's  residual  mental  capacity,  provided  by  Dr.

            Reboredo and Dr. Jeanette  Maldonado, found that claimant had

            a  severe anxiety-related  disorder which  imposed "moderate"

            limitations  in  various  functional  areas,   including  the

            following:    maintaining  attention  and  concentration  for

            extended periods, performing  within a schedule,  maintaining

            regular attendance and punctuality, completing a normal  work

            day or week  without interruption from  psychologically based

            symptoms,  performing  at  a   consistent  pace  without   an

            unreasonable number  and length of rest  periods, interacting

            appropriately with the general public, getting along with co-

            workers  without  distracting them  or  exhibiting behavioral

            extremes, and  responding appropriately to changes  in a work

            setting.     Of particular  relevance, given  claimant's past

            work as a  lottery ticket  salesman and the  ALJ's denial  of

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benefits on the ground that claimant could still perform that

            job,  Dr. Reboredor  wrote  that claimant  "cannot relate  to

            public . . . on a  steady basis," and Dr. Jeanette  Maldonado

            expressed a similar view.

                      The  ALJ  herself  specifically  concluded  in  her

            decision  that claimant  has "some  anxiety related  disorder

            although it is mild to moderate in nature," and that he could

            not "perform . . . complex tasks with detailed instructions."

            The ALJ  failed to address, however, what affect the moderate

            limitations  on, for  example,  dealing with  the public  and

            completing a normal workday  would have on claimant's ability

            to perform his past work as a salesman.  

                      Although  we  recognize that  the  medical evidence

            supported the  ALJ's finding of  a "mild to  moderate" mental

            disorder,  the hypothetical  presented  to the  ALJ --  which

            effectively  described no mental limitation  at all -- was at

            odds  with  the  medical  evidence  and  with the  ALJ's  own

            finding.    It may  be that  claimant's  former job  could be

            performed by an individual with claimant's "mild to moderate"

            mental  impairment.  This court is certainly not qualified to

            make  that  determination nor  is it  clear  why the  ALJ was

            entitled  to  do  so  in  the  absence  of  expert vocational

            testimony.  Such was not obtained here and, if  there is some

            basis  on which  the  ALJ was  justified  in disregarding  or

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discounting the medical evidence  as to mental disorder, that

            explanation is not set forth in the ALJ' decision. 

                                 Conclusion
                                 __________

                      For the  reasons stated above, the  judgment of the

            district  court is  vacated.   We  remand  this case  to  the
                                _______

            district court  with instructions to remand  to the Secretary

            for  further proceedings,  which  may include  the taking  of

            additional  vocational evidence,  not inconsistent  with this

            opinion.          

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